s communicating with the workers on the Project, notifying them when traffic was entering the site and which direction it was coming from.
The 3 traffic controllers rotated duties so that they would each work for a period not exceeding 2 hours and then have a break for at least 15 minutes. This was in accordance with clause 4.6.5 of the Standard. While they were on their break from controlling traffic they might also help with other tasks like cleaning debris off the road when a tree was felled if the other team members needed a hand, but their main role was to control traffic.
Each of the team members held an RTA approved Traffic Controllers Certificate, which permitted them to control traffic using a stop/slow bat. Further details of the team's training are located at Section I 'Training' of my affidavit.
13 In his affidavit, Mr Lawson described the Project Management Plan and the risk assessment process. That process involved the following:
(a) On 10 January 2003, several staff of SnowyWS, including Murray Brooks, undertook a hazard identification for the task of traffic control generally. They assessed the risks of the hazards identified and developed control measures for this task. The 'Record of hazard identification risk assessment and control' is annexed to this Affidavit ...
Of the hazards identified, the only one rated as high was initial erection of signs before work commences (and this would also apply, in reverse, to uncovering and turning signs).
(b) On 22 October 2003, a site-specific risk assessment of the works involved in the Project was carried out by staff, including Murray and Robert, using the 'Site Hazard Identification Checklist'. This checklist is annexed to this Affidavit ...
14 Mr Lawson also described the induction process, which involved taking the team through all the site-specific issues that had been identified and the suitability of the Traffic Control Plan. In relation to the implementation of the traffic control plan Mr Lawson deposed:
Work at the Project was undertaken in accordance with the requirements of the Traffic Control Plan which is included in appendix 3 to the Project Management Plan, annexure 1 to this Affidavit.
The Traffic Control Plan detailed the signage requirements for the Project.
The traffic control work
Section 5 of the Traffic Control Procedure (annexure 3) described the procedure for erecting traffic control signs.
Each of the speed zone signs was supported by a post, which was inserted into a hole in the top of a spike (known as an 'Oz-spike') which was driven into the ground. A wedge was used to secure the post in the spike so that it would not turn with the wind from passing trucks.
The purpose of the signs was to forewarn motorists that there were people doing work on or near the road, and to slow the traffic down as it approached the site of the Project. The Traffic Control Plan required that signs be erected over a distance of 520 metres on each end of the Project works.
The sequence of signs was as follows:
(a) 'Roadwork ahead' on the left hand side of the road;
(b) '80 ahead' located on each side of the road;
(c) '80 roadwork' located on each side of the road;
(d) '40 roadwork' located on each side of the road;
(e) A road worker symbol on the left hand side;
(f) A flagman symbol on the left hand side;
(g) 'Prepare to Stop' on the left hand side.
The 40 kilometres per hour speed zone signs, the two symbol signs and the 'Prepare to Stop' sign were only permitted to be displayed whilst workers were on site (in accordance with the Standard and the Direction to Restrict Traffic), so they had to be covered or turned at other times.
While technically, under the Standard, the 80 kilometres per hour speed zone signs were only permitted to be displayed where there was some disturbance to alignment or pavement surface which made unrestricted speeds undesirable on safety grounds, Council's usual practice during roadworks was to keep these signs up overnight as it reduced the time spent by workers in changing signage. Within a week after the date of the Incident, work would have started on the road surface and the overnight use of the 80 kilometre per hour speed zone signs would have been permitted.
It is important to cover signs that do not apply so that drivers don't become complacent. If drivers see a sign and slow down but the road surface is not disturbed or they do not any see workers, they are less likely to obey signs at other worksites they drive through.
When erecting signs and when setting them up before the day's work started, the Traffic Control Procedure required the traffic control team to start with the sign furthest from the work site and work inwards towards the worksite (as per the Standard and the RTA Manual, although it should be noted that the RTA Manual recognises that for difficult sites, special arrangements may be required and that this may mean that signs are removed in the same order as they were erected to allow the work vehicle to move in the direction of normal traffic flow).
The Traffic Control Procedure did not specify a procedure for covering and removing signs at the completion of the day's work. When I drafted the Traffic Control Procedure, I expected that it would be understood that the covering and removal of signs should begin at the site of the works and gradually move outwards to the signs located farthest from the centre of the works. Although this was my understanding, I accept that this is not adequately explained in the Traffic Control Procedure.
The Traffic Control Procedure also required that the erection of the signs was undertaken using a vehicle with two flashing lights and a "Patrol" sign as a 'batter' [sic] between traffic and the workers erecting the signs. While I accept that the Traffic Control Procedure does not, specifically, state that this should also occur when turning and covering signs at the end of each day, this was my expectation when drafting the Traffic Control Procedure.
Contrary to the Traffic Control Procedure, the vehicle used by Robert and Murray was fitted with only one revolving light and did not have any "Patrol" sign.
At the time, this was the only vehicle that was available and was due to be sold. Since it was to be sold, the light bar (with 2 flashing lights and a 'PATROL' sign) had been removed (all Council's vehicles have these fitted as standard). Because the vehicle was retrieved from sale, only a single flashing light had been installed. A copy of a photo showing the usual set up for Council's work vehicles, with 2 lights and patrol sign, is annexed to this Affidavit ...
The requirement to turn or cover the signs
As stated above, Council's usual procedure was to only remove the 40 kilometres per hour speed zones, pictorial signs and 'prepare to stop' signs from display at the end of the day. The 'roadwork ahead' and 80 kilometres per hour signs were usually kept on display to reduce the exposure of workers in turning signs at the beginning and end of each day. The 'roadwork ahead' signs are used to warn motorists that there may be something happening ahead, be it simply altered road pavement or workers setting up signs for the day's work. The 80 kilometres per hour zone was permitted to be displayed out of work hours under clause 4.5.3 of the Standard (only when traffic safety issues required it, for example, alteration of the road surface) and was also authorised under the Direction to Restrict Traffic.
On 22 October 2003, I received an oral direction from the RTA requiring the signs to be covered outside work hours. I had a telephone conversation with the local RTA officer, Rhod Stevens, Road Safety and Traffic Officer, during which he said words to the following effect:
'I've just driven through your site at Gocup Road and given that you haven't changed the road surface, you shouldn't have the 80 kilometres per hour signs up when you're not working there.'
15 Mr Lawson described the training provided to the three workers, which included general training (e.g., Snowy WS Safety Handbook Training - a general overview of OHS management system policies and processes), task-specific training (e.g., RTA Traffic Controller Ticket) and site-specific training.
16 In relation to the incident itself, Mr Lawson stated:
At the time of the Incident Robert, Murray and Mark were each wearing a high visibility safety jacket with reflective strips on the arms and across the back and body. This was compulsory personal protective equipment for traffic controllers.
Council acknowledges that the system of work which was provided and being applied at the time of the Incident in relation to the covering and turning of signage at the end of the day's work, as described in the statement of agreed facts, was inadequate. It was inadequate because it permitted workers to cross the road when covering and turning signs. Although it was implicit in the Traffic Control Procedure that workers should not cross the road, because a vehicle should always be placed between workers and traffic, this was not spelt out in the Traffic Control Procedure with sufficient clarity.
Council also acknowledges that, as a result of the inadequacy in the Traffic Control Procedure, the workers were not provided with sufficient information, instruction, training and supervision in relation to the turning and covering of signs at the end of the day's work.
Council accepts that there was inadequate warning given to motorists of the presence of the workers involved in the covering and turning of the signs because the utility was equipped with only one flashing light and was not equipped with a 'Patrol' sign.
17 Events occurring after the incident were described by Mr Lawson in the following terms:
I arrived at the Work Site about 1 hour after the Incident, having travelled back from a training course in Bateman's Bay. When I arrived at the site I started to make inquiries about what had happened.
Once the Police had completed their inquiries, I instructed the team to turn the final 80 kilometres per hour sign that Murray had been working on.
On Monday 3 November, I met with the team to discuss what we could do to improve the work method.
Work recommenced on the following day. I instructed the team to leave the 80 kilometres per hour signs up while out of work hours. I acknowledge that this was not in strict compliance with clause 4.5.3 of the Standard ... but I wanted to minimise the exposure of the workers to the hazards associated with changing the traffic control signs.
We received no improvement notices or prohibition notices from WorkCover following the Incident.
In the following weeks, further meetings took place involving relevant staff to review Council's traffic control procedures in the light of the Standard and the RTA Manual and to reflect on what may have contributed to the Incident.
WorkCover conducted an investigation. Under cover of a letter from the CEO dated 4 November 2003, Council provided Mark Barber, our local WorkCover Inspector from Wagga, with a bundle of documents which included a summary of Council's investigation and the systems it had in place at the time of the Incident. I prepared this report and the material attached to it. A copy of this document is annexed to this Affidavit ...
The 4 November report was prepared shortly after the Incident occurred. It was prepared during an ongoing process of review to work out how Council should deal with this situation. Since then, the new procedures referred to below have been developed which require that workers do not cross the road when covering and turning signs. Council acknowledges that if those procedures had been in place and adhered to, the Incident would not have occurred.
After the Incident, I started revising the Traffic Control Procedure. On 8 May 2005 Council implemented the revised Traffic Control Procedure. The revisions are identified in and attached to the statement of agreed facts. The revised Traffic Control Procedure was issued to relevant Snowy WS teams, including the road construction team, by the OHS co-ordinator.
I decided to support the Traffic Control Procedure during our 'tools down day' with a 2 hour presentation on installing/removing signs. This occurred in early September 2006. The handwritten traffic control plan was produced to facilitate this presentation and is referred to in and attached to the statement of facts. The diagram was given to 80 Snowy WS staff who were required to attend 4 workshops on this day, including my workshop. Groups of 20 attended each workshop and then rotated to the next presentation.
In addition to using work vehicles equipped with 2 flashing lights and a 'Patrol' sign, Council now uses a 'workman ahead' pictorial sign on the back of utes as an extra warning. This means we do not have to put another sign out on the road which minimises the exposure of the workers to traffic. ...
18 In relation to the defendant's occupational health and safety system, Mr Lawson stated:
Council's OHS Management System has been recognised to be of a high standard. Council has been prequalified with the RTA to the "R5" level since 14 October 2003. This means we are eligible to tender for roadworks up to the value of $5M. The prequalification scheme considers compliance of the 'paper' system and also the practical implementation of the system to the RTA Standard G22 Occupational Health & Safety (Major Works). This standard satisfies the requirements of Australian Standard 4801:2001 Occupational Health and Safety Systems - Specification with guidance for use . A team of RTA and external auditors undertakes an annual audit of our projects. The Project was audited in April 2004 by GHD who had conducted an RTA audit the previous year on a similar project. The audit was not prompted or undertaken because of the Incident, but rather was arranged in order to maintain our R5 prequalification, demonstrating ongoing compliance to the relevant Standards and implementation of the management system.
We were the first local government organisation in NSW to attain the R5 prequalification level. I understand that Gosford City Council (a much, larger Council with about 1300 employees) is now at this level, but for at least a couple of years we were the only one. There are only about 20 other organisations who have achieved this prequalification (or higher) in New South Wales.
19 Under the heading "Contrition" Mr Lawson deposed:
After the Incident I assisted Robert's partner and family members by arranging accommodation for them at Council's expense while he was in hospital in Canberra for a period of 7 days. I also arranged for payment of his wages to be continued until the workers compensation claim was sorted out.
Council arranged to provide counselling services to the family to be used at their discretion. This was arranged through Council's employee assistance program, which makes counselling available on a confidential basis. Details of these sessions are not made available to Council. Council is only advised of a charge for the service when it receives an invoice for the service, which does not disclose the identity of the person attending the counselling.
Council deeply regrets the circumstances which led to the Incident and resulted in Robert's tragic death and the consequent distress to his family and friends, including a number of his Council workmates. Council is committed to ensuring the safety of all of its employees and members of the public and will continue to review and improve its systems of work to achieve this objective.
Consideration
20 In considering what is an appropriate penalty in this case, it is convenient to commence with an assessment of the offending conduct with a view to determining the nature and quality of the offence: See Lawrenson Diecasting Pty Limited v WorkCover (NSW) (1999) 90 IR 464 at 475. This involves an assessment of the seriousness of the breach. Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium v WorkCover Authority (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority (NSW) v McDonalds (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32].
21 The offending conduct may be assessed by reference to the defendant's failures to ensure safety. The first of these was a failure to provide and/or maintain a system of work that was safe and without risk to the health of its employees. Critically, the system of work involved at least one of the workers to cross Gocup Road on several occasions as they covered or uncovered the traffic control signs. Whilst there were generic traffic control procedures in place and warnings about the dangers of traffic, the defendant did not have in place a specific documented work procedure for the task of covering and uncovering signs. Nor had the defendant, up to and including the day of the accident, undertaken any risk assessment in relation to the task of removing, covering or turning of traffic control signs.
22 It is not hard to imagine that on a cold, wet and windy day, nearing the end of work for the week, that in the absence of stringent safety procedures and a system specifically designed to prevent the risk of being struck by a motor vehicle whilst turning or changing the signs on the road, workers could become inattentive or careless for their own safety.
23 Whilst individual workers will carry a responsibility for their own safety, especially in crossing roads where the speed limit may be 100 kilometres per hour, that does not relieve the employer of the responsibility of anticipating the possibility that inattention or carelessness may set in and doing all that is reasonably practicable to ensure the risk of collision is avoided. A risk assessment would be an essential step in that process, covering every aspect of the worker's routine. Here, the crucial assessment was not undertaken.
24 This is not to say the defendant had no system of work in place in relation to safety. On the contrary, it is apparent that safety was a high priority for the defendant and considerable effort had been directed towards assessing the many risks associated with traffic control. However, the system contained a critical flaw to the extent that it did not adequately address the risks associated with workers crossing the road to change traffic control signs. After the accident the defendant adopted, amongst other safety measures, a system of using a spotter to watch for traffic while a sign was being removed. If this had been part of the system of work prior to the accident it may well have avoided the risk and prevented the death of Mr Turner.
25 The defendant, albeit faintly, submitted that in:
[A]ssessing the objective seriousness of the deficiencies in the system of work, et cetera, that the consequences in this case did occur at least in some part as a result of the carelessness of Mr Turner. He walked out directly into the path of an oncoming vehicle. Clearly the Council's duty extended to ensuring the safety of careless and negligent - even wilfully disobedient - employees and that goes to liability but in my submission, in assessing penalty, that circumstance is also relevant.
26 Riley v Australian Grader Hire (2001) 103 IR 143 was an appeal from Ms P O'Shane, Local Court Magistrate sitting as an Industrial Magistrate. In a prosecution under s 15(1) of the Occupational Health and Safety Act 1983 her Honour gave the defendant the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. The Full Bench found her Honour had erred and made orders convicting the defendant and imposing a fine of $7,000. In doing so, the Full Bench observed at [15]:
The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing.
27 The Full Bench noted with approval the observations of Bauer J in WorkCover v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257:
Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.